PATENTS 



801 



peerages and baronetcies, appointments to judicial 

 and administrative offices, charters of incorporation, 

 and monopolies of the right to make, use, exercise, 

 and vend new inventions. Of these grants it is 

 here proposed to consider the last mentioned alone, 

 to which the term patent is in common parlance 

 restricted. It may, however, be observed in pass- 

 ing that the procedure connected with royal grants 

 other than patents for inventions is still intricate 

 and technical, resembling that which was in use 

 for patents of invention before the Patent Law 

 Amendment Act of 1852, and that such grants are 

 enrolled on the Patent Rolls, and may be seen at 

 the Record Office or, in the case of recent grants, 

 at the Chancery Enrolment Office, London. 



From a very early period in our history the 

 sovereign has enjoyed and exercised the prerogative 

 of securing to inventors, for a limited term, ' the 

 ole right of making, using, and vending ' new and 

 useful inventions. Thus, it is stated that Edward 

 III., on the representation of some alchemists, 

 granted a commission to two friars and two alder- 

 men to inquire whether a philosopher's stone might 

 be made, and, on their reporting that the project 

 was feasible, granted to the two aldermen a patent 

 of privilege that they and their assignees should 

 have the sole making of the philosopher's stone. 

 Upon the royal prerogative, however, of which this 

 <:ase offers an early, though in all probability by 

 no means the earliest, illustration, the common law 

 placed certain definite and well-understood restric- 

 tions. ( 1 ) The sovereign could not grant the sole 

 right to sell articles in common use. Thus, letters- 

 patent granting to one John Pechey the sole im- 

 portation of sweet wines into London were, at a 

 parliament held in the fiftieth year of the reign of 

 Edward III., declared to be void. (2) A grant of 

 the sole right to exercise a known occupation was 

 bad. This was decided as to the manufacture and 

 importation of playing-cards in the leading case of 

 Darcy v. Allin. (3) The grantee was required to 

 have been at least the introducer of the invention 

 within the realm. (4) The term of the grant must 

 be for some limited period, such as might be 

 sufficient for the instruction of others. (5) The 

 subject-matter must be such as, in the result, led to 

 a new trade or manufacture. (6) The patented 

 invention must possess the incidents of utility and 

 novelty, and must not be prejudicial or inconvenient 

 to tratle ( 1 Welwster Patent Cases, 7. n. ). 



In the reign of Elizabeth, however, and still 

 more emphatically in the reign of James I., the old 

 common-law monopoly changed its character. The 

 number of bonA-fide inventions or discoveries was 

 small. But tne financial and political difficulties 

 of the sovereign were great. The royal prerogative 

 of granting limited monopolies ' for the good of the 

 realm and the furtherance of trade ' came, with 

 many other doubtful expedients, to the sovereign's 

 assistance. The common-law limitations were 

 ignored. Currants, salt, iron, powder, cards, calf- 

 skin, paper, tin, sulphur, and a hundred other com- 

 modities in common use were appropriated to 

 monopolists for practically unlimited periods. The 

 patentees were enabled to charge extortionate 

 prices for inferior articles, to enter (at least under 

 the saltpetre patents) private houses and ransark 

 stables and cellars for infringing articles, and to 

 have infringers brought liefore the council and 

 punished for contempt of the royal authority. 

 After a protracted struggle, in the course of which 

 Queen Elizabeth recalled most of her obnoxious 

 grants, and James published a counterblast against 

 monopolies, which influenced his subsequent con- 

 duct very slightly, the famous Statute of Mono- 

 polies was passe'd in 1624. The purview of the 

 measure has often been misrepresented. It did 

 not, as we have seen, create the royal prerogative to 

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grant letters-patent for inventions. But it declared 

 that all such monopolies as the sovereign had 

 latterly been granting were contrary to law and void. 

 It then excepted from this sweeping prohibition 

 (inter alia) 'grants of privilege for the term of 

 fourteen years or under, thereafter to be made, of 

 the sole working or making of any manner of new 

 manufactures within the realm, to the true or first 

 inventor or inventors, which others, at the time of 

 making such letters-patent and grants, shall not 

 use, so as also they be not contrary to the law, 

 nor mischievous to the state, by raising prices of 

 commodities at home, or to the hurt of trade, or 

 generally inconvenient.' 



This saving clause in the Statute of Monopolies 

 is the foundation of the modern English patent 

 system. It preserves, and at the same time limits, 

 the royal prerogative to grant monopolies of inven- 

 tions, and it gives a most succinct, and yet a 

 complete, statement of the characteristics ' of a 

 valid patent-grant. The term of the grant is to 

 be fourteen years or under; and patents are in 

 fact now always granted for a term of fourteen 

 years. The grantee is to be ' the true and first 

 inventor ' words which a series of judicial decisions 

 has interpreted as including the first importer 

 from abroad of the patented invention. The 

 jn-ivileqe conferred is the sole and exclusive right 

 to work or make the invention ; and the subject- 

 matter of a valid grant is ' any manner of new 

 manufacture within the realm' which is (a) not 

 in use at the date of the grant, (b) not contrary 

 to law or mischievous to the state, (c) not to the 

 hurt of trade, or (d) not generally inconvenient. 

 The next important measure in the history of our 

 patent law is Lord Brougham's Act, 1835. At 

 common law, letters-patent were wholly void for 

 any defect in part, not being a mere clerical error 

 which the Master of the Rolls could correct ; and 

 a patentee was liable to be deprived of his patent 

 from the failure of some condition, such as want 

 of novelty in a very trifling part of the invention. 

 The Act of 1835 enabled a patentee to enter with 

 the clerk of patents, by permission of the crown, 

 signified by the fiat of the law officer, a dis- 

 claimer of any part of the title or a memorandum 

 of any alteration therein, which upon being filed 

 by the clerk of patents, and enrolled with the 

 description of the patent, was deemed and taken 

 to be part of the letters-patent in all courts what- 

 ever. A still more important change was intro- 

 duced by the Patent Law Amendment Act, 1852. 

 The policy of granting patents is not only to 

 reward inventors, but to induce them to disclose 

 their inventions to the public. Different means of 

 attaining the latter object have been adopted at 

 different stages in the history of our patent law. 

 The earliest practice was to insert in the grant a 

 proviso requiring the inventor and his assignee to 

 take apprentices during the last seven years of the 

 term, and to teach them 'the knowledge and 

 mystery ' of his invention. In the reign of Queen 

 Anne the patentee was required within a certain 

 period (usually six months) after obtaining his 

 patent to enrol at one of the public record offices 

 a specification or description of his invention, upon 

 the accuracy and sufficiency of which the validity 

 of his grant in great measure depended. This prac- 

 tice had several grave disadvantages. There were 

 three offices in which specifications might be en- 

 rolled the Enrolment Office, the Rolls Chapel, and 

 the Petty Bag Office ; in eacli of these offices a 

 laliorious search might have to be made before a 

 particular specification could be discovered and 

 inspected. Again, the interval of time which 

 elapsed between the grant of a patent and the 

 enrolment of the specification enamed a patentee 

 first to obtain protection for what might be merely 



